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First SemesterUniversity of South Africa.
Name: Ayomide Rachael Tijani
Subject: IND2601- African customary law.
Assignment: 01
Unique No: 584619
Due date: 28 May 2021
1. Discuss the implications of sections 30 and 31 of the Constitution for the recognition
of customary law?
1. THE IMPLICATIONS OF SECTION 30 AND 31 OF THE CONSTITUTION.
Section 30 and 31 provides for a new approach to customary law.
Section 30 confers no express right to insist that customary law be applied. It provides
that individuals have the right to take part in the culture of their own choice, individuals
may demand access to cultural to a cultural group and may take part in the activities
of that group.
A right to apply customary law would impose a responsibility on the state to maintain
an African culture.1
Section 30 provides that a person has the right to “participate in the cultural life of their
choice”2, while section 31(1) provides that:
(i) Persons belonging to a cultural, religious or linguistic community may not be denied
the right, with other members of that community.
(a) To enjoy their culture, practice their religion and use their language and 3
(b) To form, join and maintain cultural, religious and linguistic association and other
organs of civil society. 4
1
JM Pienaar, African customary law (university of south Africa 2012) 30-32
2 Section 30 of the constitution
3 JM Pienaar, African customary law (university of south Africa 2012) 30-32
4 Section 31 of the constitution
, In terms of section 31 the state has two duties:
a. Not to interfere with the rights of the individuals
b. To allow the existence of the institution that is necessary to maintain the culture
concerned.
Another aspect of the right to culture upheld by Section 31, the right of the group of
people to have and maintain a specific group identity, groups and individuals symbiotic
in nature. The individual right to adhere to a culture of choice assumes the existence
of a cultural group or community and this community must exist before the individual
can have any rights it. It can be argued that a person’s right to the application of
customary law in a certain instance is vested in membership of a group. This group
must be recognized by the state before an individual can enforce his or her rights.
Another implication of section 30 & 31 is the conversion of a freedom into a
constitutional right. These sections refer expressly to “a right”. This increases the
following question: what is the difference between constitutional freedom and
constitutional right? Freedom means that there’s no regulation by the law. An individual
may act according to his or her own choices as he or she sees fit. This means freedom
is subject to a right, because the bearer of right may enforce that right. Rights demand
a specific conduct, while freedom allows choices.5
2. Prescription of a debt or a claim is unknown in customary law. Evaluate this
statement?
2. The prescription of a debt or claim is unknown. Can mean in simple terms a debt or
case does not become invalid or unenforceable through lapse of time. A debt or case
does not expire
A plaintiff is compelled to submit his claim without any delay, there are two reasons:
1) A delay may make it more difficult for the plaintiff to prove the facts, because the
witnesses may move or die. The plaintiff may also lose his or her action if he or
she dies before the action is instituted. If the action has already been done and the
plaintiff dies, the action passes to his successes.
2) He or she may harm the other party through his or her delay for instance the other
party may be denied the opportunity to examine the facts in good time.6
5
JM Pienaar, African customary law (university of south Africa 2012) 31-32
6
JM Pienaar, African customary law (university of south Africa 2012) 140
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